[2009] KECA 235 (KLR)
The court found that the appellant filed the record of appeal out of time, having delayed by over 250 days beyond the prescribed period without seeking or obtaining leave of the court. The appellant failed to provide any explanation for the delay and did not appear at the hearing to contest the application. The...
Source-derived case information.
- Citation
- [2009] KECA 235 (KLR)
- Parties
- Appellant: Wilson Nzioka Mutiso; Respondent: James Muhoro Ndung'u; Respondent: Ruth Wangeci Ndung'u
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 103 of 2005
- Procedural Posture
- Civil Appeal / Application for Striking Out Appeal for Being Filed Out of Time
- Outcome
- appeal struck out for being filed out of time without leave
- Judges
- AM Githinji, JW Nyamu
- Legal Topics
- Extension of Time, Striking Out Appeal, Appeal Timelines, Service of Record, Ex Parte Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Nzioka Mutiso
Appellant
James Muhoro Ndung'u
Respondent
Ruth Wangeci Ndung'u
Respondent
Procedural Posture
Civil Appeal / Application for Striking Out Appeal for Being Filed Out of Time
Legal Issues
- 1 Whether the appeal was filed within the prescribed time limits under the Court of Appeal Rules.
- 2 Whether the appellant provided sufficient explanation for the delay in filing the appeal.
- 3 Whether the appeal should be struck out for being filed out of time without leave of the court.
Ratio Decidendi
The court found that the appellant filed the record of appeal out of time, having delayed by over 250 days beyond the prescribed period without seeking or obtaining leave of the court. The appellant failed to provide any explanation for the delay and did not appear at the hearing to contest the application. The court held that strict adherence to procedural timelines is mandatory and that non-compliance, especially without explanation or application for extension, is fatal to the appeal. Consequently, the appeal was struck out as incompetent, and costs were awarded to the applicant/respondent.
Court Disposition
appeal struck out for being filed out of time without leave
Orders
- The appeal is struck out with costs to the applicant/respondent.
- Costs of this application are awarded to the applicant/respondent.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appeal (Appli) 103 of 2005
WILSON NZIOKA MUTISO…………………APPELLANT/RESPONDENT
AND
JAMES MUHORO NDUNG’U
RUTH WANGECI NDUNG’U …………….RESPONDENT/APPLICANTS
(Application for extension of time to file and serve a record of appeal from the judgment and decree of the High Court of Kenya at Nairobi (Ang’awa, J.) dated 23rd May 2002
in
H.C.C.C. No. 995 of 2001)
*********************
RULING OF THE COURT
This application by Notice of Motion made under rules 42, 80 and 81of the Court of Appeal Rules seeks the striking out of the appellant’s appeal dated and filed in court on 16th May 2005 and for costs thereof to be awarded to the applicant. It is based on the grounds set out thereon; namely:
“1. THAT the applicant having received the certified copies of proceedings and judgment on the 8th July 2004 should have instituted the appeal by the 6th September 2004; within 60 days of 27th May 2002 when the notice of appeal was lodged excluding the time certified to have been necessary to prepare and deliver the proceedings and judgment which was certified to have been between 29th July 2002 and 8th July 2004.
2. THAT the appellant delayed in instituting the appeal by over 250 days, which delay is inordinate and without explanation.
3. THAT the appellant, though aware of the lapse of time within which to institute the appeal has not moved this court for leave to appeal out of time.”
The application was also supported by an affidavit sworn to by one Mrs. Mary Wangui Kiarie practicing in the firm of Messrs C. W. Maina, Kiarie & Kariuki Advocateswho represent the applicant. The contents of the affidavit focuses on the appellant’s delay in filing the appeal outside the prescribed time.
When this application came for hearing on 6th July 2009, only counsel for the applicant appeared. Neither the appellant nor his counsel appeared though counsel was served with hearing notice, hence the application to strike out the appeal was heard ex parte. Counsel for the applicant relied on the application, the grounds set out thereon as well as the supporting affidavit. She also referred to an application filed in this court seeking leave to file the intended appeal out of time which application was withdrawn on 30th February 2007. In the circumstances, it is our view that the record of appeal filed herein on 16th May 2005 was so filed out of time and without the court leave to do so. We therefore order that appeal be struck out with costs of the appeal as well as those of this application to be paid to the applicant/respondent.
The amount of money awarded to the respondents in whichever financial institution it may be, and ordered by the superior court to be deposited in the East African Building Society, in the joint names of the respondent’s administrators and the Registrar of the High Court be released to them if they have reached the age of majority.
Dated and delivered at Nairobi this 10th day of July, 2009.
E. M. GITHINJI
………………………
JUDGE OF APPEAL
D. K. S. AGANYANYA
……………………….
JUDGE OF APPEAL
J. G. NYAMU
………………………
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR